Research Proposal on "Business Homeland Security Hamdan v"

Research Proposal 6 pages (1851 words) Sources: 0 Style: APA

[EXCERPT] . . . .

Business Homeland Security

Homeland Security

Hamdan v. Rumsfeld

This is a case wherein the Supreme Court of the United States seized that military commissions put together by the Bush government to try prisoners at Guantanamo Bay be short of "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice (UCMJ)and the four Geneva Conventions signed in 1949. The case measured whether the United States Congress possibly will pass legislation putting a stop to the Supreme Court from investigating the case of an accused soldier earlier than his military commission takes place, whether the particular military commissions that had been set up violated federal law which takes account of the Uniform Code of Military Justice and treaty obligations, and whether courts can enforce the articles of the 1949 Geneva Convention (http://law.duke.edu/publiclaw/supremecourtonline/certGrants/2005/hamvrum.html).

The Court issued a 53 pronouncement on June 29, 2006 holding that it had authority, that the government did not have power to set up these scrupulous military commissions with no congressional approval, for the reason that they did not act in accordance with the Uniform Code of Military Justice and the Geneva Convention which the court found to be incorporated into the Uniform Code of Military Justice (http://www.nytimes.com/2006/06/29/Washington/29cnd-scotus.html).

Associate Justice John Paul Stevens' opinion embarked on with the issue of jurisdiction, disagreeing with the U.S. government's proposition to dismiss the case under Section 1005 of the Detainee Treatment Act of 2005 (DTA), which gave the D.C. Circuit Court of Appeals special control to evaluate the decisions of cases being tried before military commissions. The judgment clearly stated that, since DTA did not bar it from taking into consideration the petition, it was pointless to come to a decision whether laws absolutely barring habeas corpus petitions would unconstitutionally contravene the Suspension Clause. Associate Justice Stevens' opinion subsequently addressed the substantive concerns of the case.

First of all, the defendant and the defendant's attorney may be prohibited to make contact with certain evidence used against the defendant. Secondly, the defendant's attorney may be forbidden to talk about certain facts with the defendant. Next, evidence judged to have any probative importance may be admitted, together with unconfirmed report, unsworn live statement, and declarations gathered through torture. Lastly, appeals are not heard by courts, but no more than in the Executive Branch with exclusion not here relevant.

Associate Justice Antonin Scalia wrote a dissenting opinion that focuses first and foremost on the issue of jurisdiction, and he was joined by Associate Justices Clarence Thomas and Samuel Alito. Justice Scalia describes the Court's conclusion to hear the case obviously mistaken. His primary argument relies on the part of the Detainee Treatment Act (DTA) that states no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba. Scalia's estimation is that this phrase suffices to disagree with the Supreme Court authority over the case. In its subsequent key argument, Scalia's view disagrees that petitioners such as Hamdan detained outside the territorial jurisdiction of the United States do not have the right to the writ of habeas corpus. As a final point, Justice Scalia chastises the Court for taking equity influence of the case.

In Associate Justice Clarence Thomas' dissent, he emphasized that the courts had no authority for this case for the grounds described in Scalia's dissent above. Thomas opposes strongly with the plurality's determination that the legitimacy of the charges against Hamdan are uncertain for the reason that he was charged not with an overt act for which he was caught but with a concurrence the start of which long predated the appropriate armed conflict. Justice Thomas similarly disagreed with the plurality's holding that even if the government had charged Hamdan with an offense that was without a doubt cognizable by military commission, the commission would still be short of power to continue since it does not act in accordance with the terms of the UCMJ and the four Geneva Conventions signed in 1949.

In Associate Justice Samuel Alito's dissent, he sided with Thomas and Scalia's clarification of why they consider the courts had no authority for this case. Justice Alito gave an explanation why he believed the military commission in this case was legal. Alito opposed with the holding of the Court which found that military commissions did not meet the definition of a regularly constituted court as required in Common Article 3 of the Geneva Conventions.

Hamdi v. Rumsfeld

The case of Hamdi v. Rumsfeld was a U.S. Supreme Court judgment rendering null and void the dismissal of a habeas corpus appeal brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained for an indefinite period as an illegal enemy fighter. The Court identified the control of the government to keep in custody unlawful combatants, but ruled that detainees who are U.S. citizens be required to include the capacity to dispute their arrest before a neutral judge.

Despite the fact that no particular opinion of the Court commanded a majority, eight of the nine justices of the Court had the same opinion that the Executive Branch does not have the authority to hold indefinitely a U.S. citizen with no basic due process protections enforceable in the course of judicial review. Associate Justice Sandra Day O'Connor wrote a plurality view in lieu of the Court's judgment, which was joined by Chief Justice William Rehnquist and Associate Justices Stephen Breyer and Anthony Kennedy. Justice O'Connor wrote that even though Congress had deliberately authorized the arrest of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a consequential chance to challenge his incarceration. Justice David Souter, joined by Justice Ruth Bader Ginsburg, agreed with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. Nevertheless, they differed from the plurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants.

Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the extreme in limiting the Executive authority of detention. Justice Scalia affirmed that based on historical standard, the government had only two alternatives to detain Hamdi. First is the suspension by Congress the right to habeas corpus which is a power provided for under the Constitution only in times of invasion or rebellion, which did not happened. Second is the trial of Hamdi under the Rumsfeld v. Padilla

The Rumsfeld v. Padilla was a case, in which Jose Padilla sought after habeas corpus release in opposition to Secretary of Defense Donald Rumsfeld, consequently of his arrest as an illegal rebel. On May 8, 2002, Padilla, a U.S. citizen, arrived at Chicago's O'Hare International Airport from Pakistan. He was detained by federal agents as he stepped of the plane executing a material witness warrant issued by the United States District Court for the Southern District of New York in relation with its grand jury examination into the September 11th terrorist attacks.

In the beginning Padilla was regarded as a material witness, with no charges filed, and given only very restricted contact to legal counsel. His designation was shortly changed to enemy combatant, which meant that he, similar to several noncitizen suspects in the War on Terror, could be imprisoned for an indefinite period, and not including legal option or access. Donna Newman, Padilla's legal counsel, claiming to act as his next friend and on his behalf, filed a formally request for habeas corpus in the United States District Court for the Southern District of New York.

On December 4, 2002, the court denied the petition and held that the President of the United States, as Commander in Chief had the power to designate as an "enemy combatant" an American citizen captured on American soil, and, through the Secretary of Defense, to keep him in custody for the period of armed conflict with alQaida. The case was appealed to the United States Court of Appeals for the Second Circuit, which held that the President lacked the right to order the military detentions of American citizens captured on American soil. The case was then appealed to the United States Supreme Court where the most important issue before the Court was whether the Congressional Authorization for use of Military Force post September 11 gave to the President the powers to militarily detain a United States citizen by categorizing the detainee as an enemy combatant.

The Court did not make a decision on this issue. Instead, the Court held that the habeas corpus appeal had been inappropriately filed. It ruled that because Padilla was being held in a military prison in South Carolina, the petition should have been filed in the United States District Court for the District of South Carolina and should have named the commander of the said military prison and… READ MORE

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